JOSE A. NARANJO, Petitioner,
JEFFREY BEARD, Secretary of the California Department of Corrections and Rehabilitation, Respondent.
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Ex Parte Application for Stay Pending Appeal of Order Granting Release from Custody ("Application for Stay Pending Appeal") filed by Respondent Jeffrey Beard. (ECF No. 49).
In February 2009, in the Superior Court of California, County of San Diego, Petitioner Jose A. Naranjo pled guilty to several violent felonies pursuant to a plea agreement. The judge did not advise Petitioner of any appeal rights he was waiving or preserving under the plea agreement. Shortly thereafter, Petitioner moved to fire his attorney and withdraw his guilty plea, alleging that he had been unduly influenced by his attorney to plead guilty and had not understood the charges to which he was pleading. The court appointed Petitioner new counsel. On June 3, 2009, following a brief evidentiary hearing at which Petitioner's new counsel presented no argument, the Court denied Petitioner's motion to withdraw his plea and sentenced him pursuant to his plea agreement. Petitioner's counsel failed to consult with him about an appeal. Petitioner alleges, and Respondent does not dispute, that he wrote to his attorney regarding an appeal and received no response. The record shows that Petitioner, on several occasions, sought basic information about his case from within prison, such as his case number, the length of his sentence, and the name of the sentencing judge - information Petitioner alleges he did not obtain until February 2010. Neither Petitioner nor his counsel initiated a direct appeal. Petitioner, proceeding pro se, filed three separate petitions for a writ of habeas corpus in the state courts, each of which was denied. This federal action followed.
On April 10, 2013, the Court conducted a de novo review of the record and found, inter alia, that Petitioner had not been afforded the effective assistance of counsel guaranteed by the Sixth Amendment, as defined in Roe v. Flores-Ortega, 528 U.S. 470 (2000). (ECF No. 27). On May 1, 2013, the Court granted Petitioner a conditional writ of habeas corpus and ordered him released from custody on June 9, 2013 unless, prior to that date, the Superior Court of California, County of San Diego had vacated its June 3, 2009 order and judgment and then reinstated that order and judgment, thereby allowing Petitioner to initiate the appeal process from the reinstated judgment by seeking a certificate of probable cause. (ECF No. 29).
On May 30, 2013, Respondent filed a status report indicating that Petitioner had been appointed counsel in the state court proceedings. (ECF No. 31). Respondent stated that Petitioner's newly-appointed state court counsel and the San Diego County District Attorney's Office had reached "a tentative agreement between them to effectuate this Court's grant of habeas relief, " which would involve: (1) the filing of a successive habeas petition in state court "based on the same allegations of ineffective assistance as raised in this [federal] Court"; (2) the filing of a stipulation by the District Attorney's Office stating that the state habeas petition should be granted; and (3) "a Superior Court judge's grant of state relief such that [Petitioner] will be allowed to file a notice of appeal and a request for a certificate of probable cause." Id. at 1-2. Respondent stated that Petitioner's state court counsel was having difficulties contacting Petitioner, and requested an additional thirty days to satisfy the conditions of the writ.
On May 30, 2013, the Court reset the date on which Petitioner must be released to July 9, 2013. (ECF No. 32). The Court also stated:
Respondent shall file, no later than June 21, 2013, any request to modify the conditions of the Court's May 1, 2013 Order, i.e. that the Superior Court of California, County of San Diego vacate the June 3, 2009 state court order and judgment and then reinstate that order and judgment, thereby allowing Petitioner to initiate the appeal process from the reinstated judgment by seeking a certificate of probable cause. Any such request shall be filed pursuant to Federal Rule of Civil Procedure 60(b). See Harvest v. Castro, 531 F.3d 737 (9th Cir. 2008). Petitioner shall file any response no later than July 5, 2013.
Id. at 2.
On May 31, 2013, Respondent filed a Notice of Appeal to the Ninth Circuit (ECF No. 34) from the Court's May 1, 2013 Order granting habeas relief (ECF No. 29).
On June 5, 2013, the Court appointed counsel to assist Petitioner in this federal proceeding. (ECF No. 39).
On July 3, 2013, Respondent filed the Application for Stay Pending Appeal pursuant to Federal Rule of Civil Procedure 62(a) and Federal Rule of Appellate Procedure 8(a). (ECF No. 49).
"[A] district court retains jurisdiction to issue orders regarding the custody or enlargement of a [habeas corpus] petitioner even after an appeal has been taken." Stein v. Wood, 127 F.3d 1187, 1190 (9th Cir. 1997) (citation omitted). "This is not a case where the district court would be deciding the same issues before the appeals court. The district court is merely deciding whether a condition placed on a habeas petitioner's custody has been met." Id. "[C]onditional orders are essentially accommodations accorded to the state, in that conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one. The consequence when the State fails to replace an invalid judgment with a valid one is always release." Harvest v. Castro, 531 F.3d 737, 742 (9th Cir. 2008) (quotations omitted). "[W]hen the State fails to cure the constitutional error, i.e., when it fails to comply with the order's conditions, and it has not demonstrated that it deserves relief from the judgment under [Federal] Rule [of Civil Procedure] 60 or the other mechanisms provided for in the Rules, the conditional grant of habeas corpus requires the petitioner's release from custody." Id. at 750; see also Fed. R. App. P. ...